Robbins v. Bergami

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

Jason Robbins, )

)

Petitioner, )

) Case No. 3:23-cv-50064

v. )

) Judge Iain D. Johnston

J. Doerer, Warden, USP Atwater,1 )

)

Respondent. )

MEMORANDUM OPINION AND ORDER

Petitioner Jason Robbins has filed a habeas petition under 28 U.S.C. § 2241,

seeking the restoration of good conduct time he lost as a result of a prison disciplinary

proceeding. For the following reasons, his habeas petition [1] is denied.

I. Background

During his time as an inmate at United States Penitentiary (“USP”) Thomson,

Robbins was disciplined for attempted assault without serious injury and refusing an

order. According to an incident report, on April 26, 2022, Case Manager Shomo was

conducting a program review with Robbins. As Robbins entered the case manager’s

office, he became irate and stated: “Why the fuck am I in here, I’m not due for team,

1 Robbins filed the instant petition when he was incarcerated at USP Thomson and properly

named the Warden at that facility, Michael Bergami, as Respondent. Dkt. 1. Robbins has

since been transferred to a new facility. Accordingly, the government has advised the Court

that the Warden at USP Allenwood may be named as the proper respondent with immediate

control over the petitioner. Dkt. 18 n.1. However, since the government’s response, Robbins

has been transferred to USP Atwater. Dkt. 23. Therefore, Michael Bergami has been

substituted for USP Atwater Warden J. Doerer as the proper respondent in accordance with

Rumsfeld v. Padilla, 542 U.S. 426, 441 (2004) and In re Hall, 988 F.3d 376, 379 (7th Cir.

2021).

you’re trying to set me up with this bullshit, I shouldn’t even be here! You don’t know

me, I’m all gas?” Dkt. 18-2, Attachment 3. Robbins then approached Case Manager

Shomo and swung at him with a closed fist. Case Manager Shomo blocked the punch

and placed Robbins against the wall and then on the ground for better control. Once

on the ground, Robbins refused staff orders to place his hands behind his back.

Robbins resisted staff by pulling his hands under his body and fighting staff attempts

to gain control of his hands. Case Manager Shomo and additional staff were

eventually able to gain control of Robbins’ hands and placed him in restraints.

Case Manager Shomo completed an incident report charging Robbins with a

violation of Prohibited Act Code 224A (attempted assault of another without serious

injury) and 307 (refusing to obey an order of any staff member). Dkt. 18-2,

Attachment 3. On April 27, 2022, Robbins was given a copy of the incident report. On

April 28, 2022, Robbins was advised of the rights afforded to him at a hearing before

the discipline hearing officer (“DHO”). Dkt. 18-2, Attachment 4. Robbins did not make

a statement to the investigating lieutenant or request to call any witnesses. Dkt. 18-

2, Attachments 2–3. Robbins requested staff representation, and Mr. Parrent was

appointed as Robbins’ staff representative for the disciplinary hearing. Dkt. 18-2,

Attachment 2.

At the hearing conducted by the DHO on May 11, 2022, Robbins stated that he

understood his rights and was ready to proceed. Dkt. 18-2, Attachment 2. Robbins

did not provide documentary evidence or seek to call witnesses. When the DHO asked

Mr. Parrent to make a statement, he said Robbins “asked me to check the camera of

the incident. I reviewed the incident and the camera showed some bit of a scuffle but

you couldn’t make anything out. He asked me to try and get copies of his

administrative remedies, but I don’t have access to those.” Id. When Robbins was

asked to make a statement to the DHO, he stated: “I filed a BP 8 and 9 on Mr. Shomo

for threatening and assaulting me before this even happened. The receipts are

numbers 1117925-F1 and 1117926-F1. I was called by Mr. Shomo to come to the

Office, the incident report says I was on call out, according to our computer I was

never even on call out. Plus why would I be upset if I was going to be coming to team,

my point might get reassessed or something like that. I was set up and it was because

I filed on Mr. Shomo.” Id.

The DHO found that Robbins committed the prohibited acts of attempting

assault without serious injury and refusing to obey an order. Dkt. 18-2, Attachment

2. The DHO relied on Case Manager Shomo’s incident report, the fact that Robbins

made no statement to the investigating lieutenant, Robbins’ statement that he was

set up and that he filed grievances against Case Manager Shomo for threatening and

assaulting him, and supporting staff memorandum involved in the incident in finding

that the greater weight of the evidence showed that Robbins committed the

prohibited acts. Several prison staff that responded to the incident provided

statements of their account, including Case Manager O’Sullivan who stated that he

observed Robbins swing his hand at Case Manager Shomo and refuse staff orders.

Dkt. 18-2, Attachment 5. The DHO found that Case Manager Shomo’s statement and

observations were credible and believable because they were made strictly in the

performance of his duties, and he had no reason to make false accusations. Robbins

was sanctioned with a disallowance of 27 days of good conduct time, forfeiture of 15

days of nonvested good conduct time, 90 days of disciplinary segregation, a monetary

fine, and limitations on phone and commissary privileges. The DHO report was

delivered to Robbins on May 20, 2022.

After exhausting his administrative remedies, Robbins filed the instant habeas

petition under 28 U.S.C. § 2241. Dkt. 1. Robbins alleges that his right to due process

was violated during the disciplinary proceedings because: (1) he was denied the

ability to present documentary evidence; (2) the incident report did not identify

witnesses who provided statements as being present at the incident; and (3) his case

manager failed to give him all pages in his program review documents that would

show additional witnesses to the incident. Dkt. 3. Upon receiving Robbins’ petition,

the Court ordered briefing. The petition is now fully briefed. Dkts. 18–19.

II. Analysis

Persons in the custody of the Bureau of Prisons have a liberty interest in good

conduct time and can challenge the loss of good conduct time by filing a motion for

habeas relief under 28 U.S.C. § 2241. See Jones v. Cross, 637 F.3d 841, 845 (7th Cir.

2011); Jackson v. Carlson, 707 F.2d 943, 946 (7th Cir. 1983). Although prisoners have

due process rights in prison disciplinary proceedings, such proceedings “are not part

of a criminal prosecution, and the full panoply of rights due a defendant in such

proceedings does not apply.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974). As a result,

a prisoner has received due process if each of the following requirements are met: the

prisoner (1) receives written notice of the disciplinary charges at least 24 hours before

a disciplinary hearing; (2) has an opportunity to be heard before an impartial decision

maker; (3) is able to call witnesses and present evidence that will not be unduly

hazardous to safety or correctional goals; and (4) receives a written statement of the

evidence relied on and the reason for the decision. Jones, 637 F.3d at 845; Wolff, 418

U.S. at 565–66.

The disciplinary decision will be upheld as long as it is supported by “some

evidence,” which is a meager standard. Scruggs v. Jordan, 485 F.3d 934, 941 (7th Cir.

2007) (“[O]nce the meager threshold has been crossed our inquiry ends.”). On habeas

review, the court does not reweigh the evidence or determine credibility.

Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445, 455 (1985);

Meeks v. McBride, 81 F.3d 717, 720 (7th Cir. 1996). “Instead, the relevant question is

whether there is any evidence in the record that could support the conclusion reached

by the disciplinary board.” Hill, 472 U.S. at 456; see also Henderson v. U.S. Parole

Comm’n, 13 F.3d 1073, 1077 (7th Cir. 1994) (finding that a court can overturn a

disciplinary decision “only if no reasonable adjudicator could have found [the

petitioner] guilty of the offense on the basis of the evidence presented”).2

Robbins first argues that he was denied due process because his right to

present documentary evidence at his disciplinary hearing was violated. Specifically,

2 A federal prisoner must also exhaust their federal administrative remedies before seeking

habeas relief in court. See Richmond v. Scibana, 387 F.3d 602, 604 (7th Cir. 2004) (“A

common-law exhaustion rule applies to § 2241 actions even though § 1997e(a) does not.”).

Here, Respondent admits that Robbins exhausted his administrative remedies prior to filing

his petition. Dkt. 18 at 3.

Robbins claims that he had credible exculpatory evidence in the form of grievances

he filed against Case Manager Shomo but was unable to present them at his hearing

because Mr. Parrent stated he did not have access to Robbins’ administrative

remedies.

“The Supreme Court has held that procedural due process requires, among

other safeguards, that a prisoner ‘facing disciplinary proceedings should be allowed

to call witnesses and present documentary evidence when permitting him to do so

will not be unduly hazardous to institutional safety or correctional goals.’” Piggie v.

McBride, 277 F.3d 922, 924 (7th Cir. 2002) (quoting Wolff, 418 U.S. at 566). “Wolff

does not, however, guarantee prisoners the unfettered right to call any witness or

present any evidence they wish regardless of its relevance or necessity.” Id.

Robbins makes the conclusory accusation that Case Manager Shomo fabricated

the attempted assault in the incident report as retaliation for Robbins accusing him

of a threat in his grievances. Robbins alleges he was set up. But Robbins made this

argument at his disciplinary hearing, and it was considered by the DHO.

Nevertheless, Robbins argues that he had a right to present documentary evidence

during his disciplinary hearing and that having actual documentation of his

grievances would have carried greater weight than his statements alone.

However, copies of the grievances he filed against Case Manager Shomo would

be cumulative of his own statements made at the disciplinary hearing about the

content of these grievances and that he believed he was being set up. Additionally,

having actual documentation of Robbins’ administrative remedy requests, as opposed

to his own statements, would add nothing to whether Robbins did or did not attempt

to assault Case Manager Shomo or ignore staff orders. Robbins’ grievances do not

contradict Case Manager Shomo’s eyewitness account of the incident.

The DHO considered Robbins’ allegations but weighed the evidence and

concluded that Robbins’ committed the violations based on Case Manager Shomo’s

eyewitness account and a staff memorandum confirming the account. Robbins did not

call any witnesses to contest the content of the incident report or the staff

memorandum. “[T]he relevant question is whether there is any evidence in the record

that could support the conclusion reached by the disciplinary board.” Hill, 472 U.S.

at 455–56. The incident report “alone” can “provide[ ] ‘some evidence’ for the [DHO’s]

decision.” McPherson v. McBride, 188 F.3d 784, 786 (7th Cir. 1999); Chambers v.

Ciolli, 19 F.4th 984, 986 (7th Cir. 2021) (“[T]he district court was right that the

incident reports sufficed to clear that low bar.”). Accordingly, “some evidence”

supports the DHO’s disciplinary decision, which is all that due process requires.

Scruggs, 485 F.3d at 941.

Next, Robbins argues that his rights were violated because Case Manager

Shomo failed to identify Case Manager O’Sullivan as being present at the scene in

the incident report in violation of Bureau of Prisons’ policy requiring a list of all

persons at the scene. He also argues that Case Manager Shomo failed to give him a

document where Shomo would certify that all required staff members for Robbins’

program review meeting were present at the time of the incident. Robbins argues that

this evidence, or lack thereof, supports his allegation that he was being set up because

neither Case Manager O’Sullivan nor any other required staff for program review

were present at the incident.

As Respondent points out, Robbins did not raise this issue before or at his

disciplinary hearing. Robbins does not dispute this. If a prisoner fails to properly

request the evidence before or at the hearing, there is no denial of his due process

rights. See Piggie, 277 F.3d at 925; McPherson, 188 F.3d at 786 (finding that the due

process clause does not require “the consideration of evidence that could have been

but was not presented at the hearing”). Not only is Robbins’ argument forfeited, but

it also has no merit.

Robbins claims that Case Manager Shomo set him up and falsified the incident

report. Robbins points to Case Manager Shomo’s failure to identify all witnesses in

his report and for holding Robbins’ program review meeting without all required staff

present. However, an officer’s violation of prison policy does not establish a

constitutional violation. See Keller v. Donahue, 271 F. App’x 531, 532 (7th Cir. 2008)

(unpublished) (finding that a prisoner’s claim that the prison failed to follow internal

policies had “no bearing on his right to due process”); Kramer v. Jenkins, 806 F.2d

140, 142 (7th Cir. 1986) (“[T]he violation of an administrative rule is not the same

thing as the violation of the Constitution.”).

Furthermore, prisoners do not have a constitutional right to avoid false

disciplinary charges. See Lagerstrom v. Kingston, 463 F.3d 621, 624-25 (7th Cir.

2006). Any impropriety with an incident report and the investigation are properly

addressed through the due process mandates of Wolff. Id. at 625 (“[E]ven assuming

fraudulent conduct on the part of prison officials, the protection from such arbitrary

action is found in the procedures mandated by due process.”); see also Zimmerman v.

Davis, 90 F. App’x 157, 159 (7th Cir. 2004) (unpublished) (finding that retaliation is

not a viable ground for relief in a habeas action apart from the due process protections

provided in Wolff and Hill).

Here, Robbins had an opportunity to explain his side of the story to the DHO

as required by Wolff. The DHO weighed the evidence and credited Case Manager

Shomo’s statement of the incident over Robbins’ denial. Importantly, when

evaluating whether the disciplinary decision is supported by “some evidence” in the

record, the court’s evaluation does not include an independent assessment of

credibility of witnesses or weighing of the evidence. See Hill, 472 U.S. at 455; Webb

v. Anderson, 224 F.3d 649, 652 (7th Cir. 2000) (“It is not our province to assess the

comparative weight of the evidence underlying the disciplinary board’s decision.”).

Despite Robbins’ argument that no one else was present in Case Manager

Shomo’s office, the DHO weighed the evidence and found the staff members’

statements more credible and believable. Although Case Manager Shomo’s incident

report itself provides “some evidence” in support of the disciplinary decision, Shomo

also stated in his incident report that: “Myself and another staff member were able

to gain control of Robbin’s hands and secure them in hand restraints.” Dkt. 18-2,

Attachment 3. This corroborates Case Manager O’Sullivan’s staff memorandum

stating that he was present at the incident.

Accordingly, the DHO’s finding that Robbins committed the charged offenses

of attempting assault without serious injury and refusing to obey an order based on

either the incident report or Case Manager O’Sullivan’s account is supported by

“some evidence.” Scruggs, 485 F.3d at 941; see also Hill, 472 U.S. at 457 (“The Federal

Constitution does not require evidence that logically precludes any conclusion but the

one reached by the disciplinary board.”). Therefore, Robbins has not established that

his due process rights were violated during the disciplinary proceedings.

III. Conclusion

For the reasons stated above, Robbins’ petition [1] is denied. Robbins is advised

that this is a final decision ending his case in this court. If Robbins wants to appeal,

he must file a notice of appeal with this court within 60 days of the entry of judgment.

See Fed. R. App. P. 4(a)(1)(B)(iii). Robbins need not bring a motion to reconsider this

Court’s ruling to preserve his appellate rights. However, if Robbins wishes the Court

to reconsider its judgment, he may file a motion under Federal Rule of Civil Procedure

59(e) or 60(b). Any Rule 59(e) motion must be filed within 28 days of the entry of this

judgment. See Fed. R. Civ. P. 59(e). A timely Rule 59(e) motion suspends the deadline

for filing an appeal until the Rule 59(e) motion is ruled upon. See Fed. R. App. P.

4(a)(4)(A)(iv). Any Rule 60(b) motion must be filed within a reasonable time and, if

seeking relief under Rule 60(b)(1), (2), or (3), must be filed no more than one year

after entry of the judgment or order. See Fed. R. Civ. P. 60(c)(1). A Rule 60(b) motion

suspends the deadline for filing an appeal until the Rule 60(b) motion is ruled upon

only if the motion is filed within 28 days of the entry of judgment. See Fed. R. App. P.

4(a)(4)(A)(vi). The time to file a Rule 59(e) or 60(b) motion cannot be extended. See

Fed. R. Civ. P. 6(b)(2).

Date: April 21, 2025 By: SS SS

Iain D. Johnston

United States District Judge

1]